and safety of the public must be considered as independent criteria for issuance of export licenses for nuclear facilities. In the past, the NRC has refused to address the impact of exported American reactors on the health and safety of persons living in foreign countries. Edlow International Co. (Agent for the Government of India on Application to Export Special Nuclear Material) 3 NRC 563, CLI-76-6 (1976) (Edlow I); Edlow International Co. (Agent for the Government of India on Application to Export Special Nuclear Materials) 5 NRC 1358, CLI-77-20 (1977) (Edlow II). In so doing, the Commission has relied on a narrow interpretation of the requirements of the Atomic Energy Act and on the assurances and judgments of the State Department. In light of recent developments and the particular facts of this case, discussed more fully below, it is clear not only that NRC is authorized to review health and safety issues in this proceeding but that it is required to do so. The Commission's narrow interpretation of its responsibilities with respect to American nuclear exports to date has been based largely on the principle of "comity among nations," Edlow I, at 575, and has relied heavily on the fact that what are characterized as foreign policy decisions lie solely within the realm of the State Department. The State Department traditionally has taken a narrow view of its responsibilities in this area, with the result that no federal agency has fulfilled its responsibilities adequately. See In the Matter of Babcock & Wilcox (On Application for Consideration of Facility Export License) 5 NRC 1332, 1344, CLI-77-18 (1977). Now, however, both the President, who ultimately controls foreign policy, and the State Department have changed the positions that previously guided NRC actions. Therefore, the underpinnings of the previous NRC decisions not to take a more active role have been removed. First, on January 4, 1979, the President issued Executive Order 12114, "Environmental Effects Abroad of Major Federal Actions," 44 Fed. Reg. 19517. That Executive Order specifically applies to export licenses ... and ... actions By its own terms, therefore, the Executive Order governs at 27 In this regard, past NRC decisions have not made an analyEical distinction between health and safety issues encompassed by the Atomic Energy Act and environmental issues raised by ΝΕΡΑ. The rationale for limiting NRC review was said to be the same as to both: considerations of foreign policy. See, e.g., Babcock & Wilcox, supra. Therefore, policy considerations which now argue in favor of expanded health and safety review by the NRC also support expanded environmental review. The Executive Order clearly reflects the judgment that legitimate foreign policy considerations militate for, rather than against, review by government agencies of the overseas effects of U.S. nuclear exports. Secretary of State Vance expressed this view in a letter to Senator Church concerning the State Department's assessment of the proposed export to the Philippines: ... I feel that we would be remiss in Moreover, in its submission regarding this proceeding, dated 37 Letter of Secretary Vance to Senator Church dated May 12, 1979 We are aware of arguments that the Executive Order does not apply to the NRC and that the President has not yet issued the report required by 42 U.S.C. 2153e-1 as a condition to the effectiveness of rules related to consideration of the environmental impact of exports. These arguments miss the point. The importance of the Executive Order does not turn on whether its provisions are directly applicable, but on the exposition of the United States' legitimate foreign policy concerns which are expressed therein. This is confirmed by the fact that Secretary Vance's letter, while not specifically refering either to NEPA or the Executive Order, comes to the same conclusion concerning the responsibility of the United States. 4/ We disagree that the outdated study ERDA-1542 (1976) covers the Commission's obligations in this regard. See discussion pp. 18-20 infr. that "a health, safety or environmental risk could so threaten U.S. relations with a recipient country" that it could jeopardize U.S. defense and security interests, and that risks from an exported facility could threaten U.S. military capabilities in the country (p. 3). The Department concedes that all of the issues listed in the Commission's October 19 Order may be considered to the extent they could affect the common defense and security of the U.S. or the health and safety of the U.S. public (p. 3). The Department of State "believes the Commission may appropriately review the judgment of the Executive branch that the criteria chosen for the plant ... are not likely to cause health, safety or environment risks of a gravity sufficient to warrant the conclusion that issuance of the export licenses would be inimical to the United States common defense and security." (p. 5). Given the basic change in approach by those primarily responsible for directing U.S. foreign policy, the NRC's past reluctance to review the foreign health and safety impacts of exports is no longer supportable. In Babcock & Wilcox, supra, in particular, the Commission emphasized its reliance upon foreign policy considerations and upon the advice of the State Department to reject the petitioners' argument that it was required to consider the environmental impacts of a reactor export to West Germany. Id. at 1338-1339, 1344. Here, by contrast, the State Department has decided that the United States should consider the health and safety impacts of these proposed exports to the Philippines. 65-506 0 - 80 - 7 Thus, while it may once have been the government's position that considerations of foreign policy always preclude review of health, safety, and environmental issues within the jurisdiction of a foreign soverign, that can no longer be said to be the policy of this country. The Commission itself also has argued recently that the health and safety risks associated with a proposed facility overseas must be considered, at least insofar as U.S. citizens may be affected. Westinghouse Electric Corp. v. Joseph M. Hendrie, et al., Civil Action No. 79-2060, Westinghouse Electric Corp. v. Cyrus R. Vance, et al., Civil Action No. 79-2110, Defendant's Points and Authorities in Support of Motion to Dismiss, pp. 26-27. In that case, Westinghouse asserted that the Commission was wrongfully withholding action on its application for an export license by considering matters outside i.e., foreign health and safety issues. its jurisdiction - The Commission replied that it was reviewing the health and safety of the U.S. public and that this was a proper exercise of its power. Memorandum of the Senate Committee on Government Operations regarding review of health and safety standards in nuclear export cases, the NRC conceded that there is "no legal pediment to NRC review of nuclear equipment intended for export to ensure that such facilities were capable of safe operation by a recipient nation." See Hearings on S.1439, supra at 916. Also, in its response to January 28, 1976 |